
    CITY OF NORTH MIAMI, a Florida municipal corporation, Appellant, v. TOWN OF BAY HARBOR ISLANDS, a Florida municipal corporation, Appellee.
    No. 73-530.
    District Court of Appeal of Florida, Third District.
    June 18, 1974.
    
      John G. Fletcher, Miami Beach, for appellant.
    Lewis Horwitz, Miami' Beach, for appel-lee.
    Before PEARSON, CARROLL and HAVERFIELD, JJ.
   PER CURIAM.

We are concerned with a boundary dispute between two municipalities. The City of North Miami brought a suit seeking a declaratory judgment to determine the rights of the parties to a portion of Broad Causeway. The action was precipitated by the fact that the Town of Bay Harbor Islands sought and obtained from the Board of Trustees of the Internal Improvement Trust Fund permission to construct a seawall and to place fill along Broad Causeway. The Board of Trustees acted upon the presumption that the portion of the causeway to be effected was within the Town of Bay Harbor Islands. The City of North Miami claimed that it had jurisdiction over the area and that the bulkhead could not be installed without its permission.

Answer was filed to the complaint and a trial without jury was had. At the conclusion of the trial, the court entered judgment for the defendant, Town of Bay Harbor Islands, in salient portion as follows:

* * * * * *
“2. The boundaries of the defendant TOWN OF BAY HARBOR ISLANDS include the Broad Causeway and all approaches thereto as specified in the Charter of the TOWN OF BAY HARBOR ISLANDS, Laws of Florida, Acts of 1953, Chapter 28899, which takes precedence over the Charter of the plaintiff CITY OF NORTH MIAMI, Laws of Florida, Acts of 1953, Chapter 29318, so far as the boundaries of the parties are concerned with reference to Broad Causeway.
“3. Defendant TOWN OF BAY HARBOR ISLANDS has jurisdiction and powers over Broad Causeway to the same extent as any municipality has over the territory within its boundaries, including but not limited to the Broad Causeway toll facility, the Broad Causeway service station, and the facility on the Broad Causeway described in the complaint as a motor pool. This jurisdiction and these powers include but are not limited to changing the location of the toll plaza and service station.
“4. The provisions of Florida Statutes 253.124(1) are not applicable to the circumstances and it is not necessary for defendant TOWN OF BAY HARBOR ISLANDS to obtain any permits from plaintiff CITY OF NORTH MIAMI.”
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This appeal is from that judgment.

The appellant presents a single point.
“Do the provisions of Florida Statute Section 253.124(1) require the appellee, Town of Bay Harbor Islands, to obtain approval from the governing body of the appellant, City of North Miami, before attempting to fill and bulkhead around the existing boundaries of the Broad Causeway ?”

It is apparent, however, that the real question to be determined is whether the court correctly found that the disputed portion of Broad Causeway was within the jurisdiction of the town of Bay Harbor Islands. The trial court went directly to that issue in the first paragraph of the judgment above quoted. It held that the act creating the Town of Bay Harbor Islands [that is Chapter 28899, Laws of Florida, 1953], had that effect and that the act being later in time than the act creating the City of North Miami, that the grant was effective. The trial court had before it the special acts creating the new municipalities. It is agreed that in the absence of the later act creating the Town of Bay Harbor Islands, the disputed area would fall within the municipal boundaries of the City of North Miami as described in the Charter of the City of North Miami [Laws of Florida, 1953, Chapter 29318], The question then becomes whether or not the Charter of the Town of Bay Harbor Islands which described its boundaries is sufficient to determine that the disputed area is within its municipal boundaries.

In the same session in which the legislature passed the special act creating the City of. North Miami [Chapter 29318, Laws of Florida], the legislature also created by special act the municipality of the Town of Bay Harbor Islands [Chapter 28899, Laws of Florida]. Chapter 28899, Section 6, which describes the territorial limits and jurisdiction of the newly created municipality of the Town of Bay Harbor Islands reads in part as follows:

“Section 6. Boundaries. — The corporate limits of the Town of Bay Harbor Islands, in Dade County, Florida-, are hereby fixed, defined, and established so as to include the following lands and territory in said county of Dade, in the State of Florida, to-wit:
"(A) All of Bay Harbor Island, a subdivision of Dade County, Florida, as shown in the plat thereof, which plat was recorded in Plat Book 46, at Page 5, of the Public Records of Dade County, Florida. The street designated as 96th Street in the recorded plat has always been known as Kane Concourse and shall henceforth be known as Kane Concourse.
“The jurisdiction and powers of the Town of Bay Harbor Islands shall extend over all streets, alleys, sewers, parks, bridges, including but not limited to the bridge spanning Indian Creek and the approach thereto from the East, which bridge connects Bay Harbor. Islands with Surfside and Bal Harbour, causeways, including but not limited to the Broad Causeway, and all approaches thereto, and all lands within said area, whether platted or unplatted, and to and over all waters, waterways, streams, bays, bayous, submerged lands, water bottoms and wharves, and to and over all persons, firms and corporations, property and property rights, occupations, businesses and professions whatsoever within said boundaries. [Emphasis Supplied]
“The title to and jurisdiction over all streets, thoroughfares, parks, alleys, public lots, bridges, causeways, waters, waterways and sewers, within the Town * * * now owned, possessed or operated by it, and all property of every kind and character which the Town may hereafter acquire within or outside of the Town, or which may vest in it, or be dedicated to it, for its use or for the public use, shall be vested in the Town of Bay Harbor Islands, as created under this act. Also, this title to all tidewater and other lands, and all creeks, bayous, and bay bottoms, and all waters, waterways and water bottoms, and all riparian rights within and adjacent to the Town limits, now owned by the State of Florida, shall be vested in the Town of Bay Harbor Islands, for municipal purposes only.”
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Upon a close reading of this section, we conclude that the legislature intended an outright grant of jurisdiction over the entire Broad Causeway to the municipality of the Town of Bay Harbor Islands there being no such equivalent express grant of jurisdiction over the causeway (or the disputed westerly portion thereof) contained in the special act which created the municipal corporation of the City of North Miami.

For the above reasons, we hereby affirm the judgment of the trial court.

PEARSON, Judge

(concurring specially).

In addition to the reason advanced in the majority opinion, I would affirm upon the following basis.

The defendant, Town of Bay Harbor Islands, asserted a defense of estoppel against the City of North Miami. The allegation of the answer was as follows:

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“11. In February 1955, the Defendant Town of Bay Harbor Islands brought an action against City of North Miami in the Circuit Court, Dade County, No. 177228. The complaint alleged that the City of North Miami was levying taxes against the service station on the Broad Causeway and the complaint demanded relief in the form of an injunction against the City of North Miami from levying any tax on that property which was located on the Broad Causeway. In that action, the City of North Miami as a counterclaim alleged that the Broad Causeway was within the boundaries of the City of North Miami and prayed that the Court enter a final decree declaring Broad Causeway to be within the boundaries of the City of North Miami. The City of North Miami in that counterclaim sought an injunction against the Town of Bay Harbor Islands from interfering or attempting to interfere with the City of North Miami’s alleged lawful exercise of its taxing powers and police powers over the Broad Causeway. Case No. 177228 between the same two municipalities as the parties in the present suit ended with a stipulation between the Town of Bay Harbor Islands and City of North Miami in which the city of North Miami cancelled and declared null and void all its tax assessments, tax bills, tax notices, and tax certificates, on the service station located on the Broad Causeway, or any personal or intangible property located thereon, and the City of North Miami agreed it would not in the future levy or enforce any taxes on any such property, real or personal, and would immediately expunge from its records any assessment or levy of taxes against any such property, real or personal. This stipulation between the two municipalities involved in case No. 177228 and in the present case constitutes a binding agreement between the parties that the Broad Causeway is within the territory and jurisdiction of the Town of Bay Harbor Islands. The entire court file in Circuit Court, Dade County, Case No. 177228 is hereby incorporated by reference.”
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The stipulation to which the appellee refers was introduced into evidence and is as follows:

“1. Defendant hereby cancels and declares null and void all tax assessments, tax bills, tax notices and tax certificates on the property, described in the lease, Exhibit ‘B’ annexed to the complaint, or any personal or intangible property located thereon, and agrees it will not in the future levy or enforce any taxes on any such property, real or personal, and will immediately expunge from its records any assessment or levy of taxes against any such property, real or personal.”
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Acting on this stipulation, the suit of the Town of Bay Harbor Islands was dismissed on the tenth day of November, 1955. This is the first instance since that time in which the appellant has sought to exercise jurisdiction over the disputed area.

I would hold that the trial court’s judgment is amply supported by the estoppel pleaded and established. It is clear that a dispute has existed for a long time as to the fact that the two acts creating the municipalities could be interpreted so that each had a claim to the disputed area. The matter was brought to the attention of the court and a binding stipulation was entered into whereby the Town of Bay Harbor Islands was left in undisputed possession of the area. Since then, some eighteen years have elapsed. The Town of Bay Harbor Islands has continuously exercised jurisdiction over the Broad Causeway without that jurisdiction being contested by the City of North Miami. Under such conditions, the trial judge in this cause should have proceeded no further and the judgment should be affirmed upon that basis.

CARROLL, Judge

(dissenting).

The determinative question, as stated in the majority opinion, is whether the court correctly found that the disputed portion of Broad Causeway is within the jurisdiction of the Town of Bay Harbor Islands.

The majority concludes that the trial court was correct in answering that question in the affirmative. With that conclusion I disagree, and I respectfully dissent from the majority’s judgment of affirmance.

The charters of the municipalities of the City of North Miami and the Town of Bay Harbor Islands were provided by the legislature in 1953. Their boundaries met at a point on Broad Causeway. The disputed area of the causeway is the westerly portion thereof, which is beyond and outside the defined limits of the Town of Bay Harbor Islands, and lies within the charter defined limits of the City of North Miami. That being so, the question as to whether the charter of the Town, which became effective some weeks after that of the City, effectively operated to take jurisdiction and control of that part of Broad Causeway out of the City of North Miami and place it in the jurisdiction and control of the Town of Bay Harbor Islands, is one that must be determined from the wording of the Bay Harbor Islands charter, the pertinent portion of which is § 6, entitled “Boundaries.” A part of that section is quoted in the majority opinion. The complete section is as follows:

“Section 6. Boundaries. — The corporate limits of the Town of Bay Harbor Islands, in Dade County, Florida, are hereby fixed, defined, and established so as to include the following lands and territory in said county of Dade, in the State of Florida, to-wit:
“(A) All of Bay Harbor Island, a subdivision of Dade County, Florida, as shown in the plat thereof, which plat was recorded in Plat Book 46, at Page 5, of the Public Records of Dade County, Florida. The street designated as 96th Street in the recorded plat has always been known as Kane Concourse and shall henceforth be known as Kane Concourse.
“The jurisdiction and powers of the Town of Bay Harbor Islands shall extend over all streets, alleys, sewers, parks, bridges, including but not limited to the bridge spanning Indian Creek and the approach thereto from the East, which bridge connects Bay Harbor Islands with Surfside and Bal Harbour, causeways, including but not limited to the Broad Causeway, and all approaches thereto, and all lands within said area, whether platted or unplatted, and to and over all waters, waterways, streams, bays, bayous, submerged lands, water bottoms and wharves, and to an over all persons, firms and corporations, property and property rights, occupations, businesses and professions whatsoever within said boundaries.
“The title to and jurisdiction over all streets, thoroughfares, parks, alleys, public lots, bridges, causeways, waters, waterways, and sewers, within the Town, and all other property and municipal plants of the Town now owned, possessed or operated by it, and all property of every kind and character which the Town may hereafter acquire within or outside of the Town, or which may vest in it, or be dedicated to it, for its use or for the public use, shall be vested in the Town of Bay Harbor Islands, as created under this act. Also, this title to all tidewater and other lands, and all creeks, bayous, and bay bottoms, and all waters, waterways and water bottoms, and all riparian rights within and adjacent to the Town limits, now owned by the State of Florida, shall be vested in the Town of Bay Harbor Islands, for municipal purposes only.
“The State of Florida does hereby surrender and grant to the said Town any claim or control that it might have over all tidewaters * * * waterways and water bottoms, and all riparian rights within and adjacent to said Town limits for municipal purposes only.”

In subparagraph (A) of § 6 the corporate limits of the Town were stated to be those defined on the recorded plat of Bay Harbor Islands. It is not contended that the recorded plat of the Town invaded or purported to include any land or area which was within the defined boundaries of the City of North Miami.

In the next paragraph of § 6 it is provided that the Town’s jurisdiction and powers shall extend over all streets, alleys, sewers, parks, bridges, causeways, including but not limited to the Broad Causeway, and all approaches thereto, and all lands within said area.

Right there a pivotal question of construction appears, and that is: Whether, where the corporate limits of the Town are declared to be those fixed by the recorded plat thereof, the further provision that the jurisdiction and powers of the Town should extend over streets, alleys, causeways, and the approaches thereto, and lands “within said area”, should be construed to have conferred upon the Town jurisdiction and powers over those parts of all streets and causeways leading into the Town which are outside the Town’s limits, or whether that provision should be construed to confer jurisdiction and powers to the Town over the portions of such facilities which are within its boundaries. The trial court, affirmed by the majority opinion, placed the former construction on that provision of the charter. I would construe it as a grant of jurisdiction and powers over such facilities where and to the extent they are within the boundaries of the Town. For example, if a through street, such as Collins Avenue, after passing for some miles through adjoining cities should also extend into a town or city having such a charter provision, would the latter have jurisdiction and control thereof in the other cities ?

The same question arises from the next paragraph of § 6 of the charter, which provides that title and jurisdiction shall be vested in the Town of all streets, thoroughfares, parks, alleys, public lots, bridges, causeways, waters, waterways, and sewers, within the Town. I observe no basis to construe that paragraph of § 6 of the Town’s charter to grant it title and jurisdiction over streets, parks, alleys, public lots, bridges, causeways, etc. that are not within- the territorial limits of the Town. In that paragraph it is clearly expressed that the items or facilities so listed are those which are “within the Town.” That the foregoing provision was not intended to grant title, jurisdiction or control over streets, bridges, causeways, etc., not owned by and within the corporate limits of the town, is emphasized by the further provision in that paragraph of the charter to the effect that the Town’s title, jurisdiction and powers will extend to property which the Town thereafter may acquire within or outside of the Town. In this case it was not contended that the land in question had been acquired by the Town from the City of North Miami by condemnation or purchase.

There is no express provision in the charter for the Town to have title, jurisdiction, or powers over streets, thoroughfares, parks, bridges, causeways, etc. lying outside of the defined limits of the Town, or of any of such facilities which may lie within the boundaries of the City of North Miami. In the absence thereof, I do not observe reasonable basis to construe § 6 of the charter to so provide. As I read the language thereof, the Town’s geographical limits are fixed, and it is given title, jurisdiction and powers as to those several listed facilities which are within the defined limits of the municipality.

I dissent also from the holding of the majority that the City of North Miami is estopped to assert that the Town of Bay Harbor Islands does not have title or jurisdictional control over the part of Broad Causeway which is beyond the limits of the Town of Bay Harbor Islands and within the corporate limits of the City of North Miami. The basis upon which such estop-pel was claimed by the Town is that in a prior suit in which Bay Harbor Islands sought to enjoin North Miami from billing the Town of Bay Harbor Islands for taxes on a service station it had constructed on a part of the causeway which lay within the corporate limits of North Miami, a stipulation was made on behalf of North Miami that it would cease taxation thereof, whereupon the action was dismissed. No question of res judicata is involved. There was no judgment entered in that case on the merits. Moreover, I could not subscribe to the proposition that a stipulation or expression of consent by a city attorney can operate to change the boundaries of a municipality, or to divest it of the ownership or jurisdiction of lands or areas, such as streets or causeways which are owned by the city and within its boundaries and jurisdiction as fixed by the legislature. It is an understatement to say that some more formal action would be required to effectively bring about such a result.

In my opinion the judgment should be reversed.  