IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA
JOHN MATHERS and BRENDA
MATHERS,                               NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellants,                      DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D16-0582

WAKULLA COUNTY, a political
subdivision of the State of Florida,

      Appellee.


_____________________________/

Opinion filed May 2, 2017.

An appeal from the Circuit Court for Wakulla County.
Dawn Caloca-Johnson, Judge.

Ronald A. Mowrey and Mark L. Mason of Mowrey Law Firm, P.A., Tallahassee,
for Appellants.

Heather J. Encinosa, Heath R. Stokley, Evan J. Rosenthal, and Carly J. Schrader of
Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellee.




PER CURIAM.

      John and Brenda Mathers (the Matherses) appeal from a final summary

judgment entered in favor of Wakulla County (“the County”). The Matherses argue,
among other things, that the trial court erred in its application of section 95.361(2),

Florida Statutes. Because acceptance is not an element of statutory-presumed

dedication under section 95.361, and section 95.361 may be invoked by private

parties, we agree and reverse the trial court’s judgment with respect to Counts 1 and

3. We affirm in all other respects without comment.

                                          I.

      Kristin Lane is a quarter-mile strip of dead-end gravel road located in rural

Crawfordville, Florida. The road runs north from East Ivan Road and is the only

means of ingress and egress to the handful of residences it serves. The Matherses

and Wayne and Brenda Mitchell (“the Mitchells”) are adjoining landowners on

Kristin Lane, with the Matherses’ residence located just north of the Mitchells.

      In early July of 2014, the Mitchells erected a fence and gate on the part of

their property abutting Kristin Lane. In an effort to block the Matherses from using

the road, the Mitchells closed the gate across Kristin Lane and posted a “No

Trespassing” sign. Although it necessarily blocked other residents from using

Kristin Lane as well, the gate was apparently directed at the Matherses, whose names

were emblazoned on the sign in black and white lettering stickers. According to Mr.

Mitchell, Mrs. Mathers had been “stating negative things about him.”

      When they arrived home, the Matherses simply opened the gate and proceeded

on their way. The next day the Mitchells chained the gate closed. The evidence

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conflicts on who telephoned police first, but in either event deputies from the

Wakulla County Sherriff’s Office eventually responded along with several county

employees. The Mitchells claimed that the part of the road traversing their land was

privately owned while the Matherses claimed it was publicly owned. At the advice

of the deputies, the Mitchells agreed to keep the gate open until the matter could be

resolved in the courts.

      When the County learned of the dispute between the Mitchells and the

Matherses, it searched minutes from meetings held before the Wakulla County

Board of County Commissioners for any reference of Kristin Lane or record of a

vote accepting Kristin Lane as a dedicated roadway. Finding none, the County’s

attorney sent the Matherses a letter informing them that the County had determined

that Kristin Lane is a private road.

      The Matherses filed a four-count complaint naming the Mitchells and the

County as defendants. Count 1 of the complaint sought a declaratory judgment

confirming that Kristin Lane had become a county road pursuant to section

95.361(2) and that the County was under a duty to maintain and repair it. In Count

2, the Matherses claimed inverse condemnation on a theory of diminished access to

their property resulting from an alleged failure of the County to maintain Kristin

Lane. Count 3 sought injunctive relief requiring the County to resume maintenance

of Kristin Lane. Count 4 sought injunctive relief requiring the Mitchells to remove

                                         3
the fence and gate. The Matherses and the Mitchells eventually entered into a

settlement agreement resolving Count 4, leaving the County as the only remaining

defendant.

      Referring to Kristin Lane, the County acknowledged in answers to

interrogatories that “[t]he County Public Works Department has occasionally

provided voluntary maintenance or repairs to non-arterial and non-collector

roadways that are more in the nature of driveways or private neighborhood roads at

the request of citizens as a public service to ensure accessibility for emergency

vehicles.” However, according to the County, it did not have any legal duty to

provide such maintenance or repair to Kristin Lane because it “is not aware of any

recorded official document of acceptance of Kristin Lane . . . as a public roadway

for use by the general public.”

      A county-issued document entitled “Work Order Listing Report” listed

Kristin Lane as a road maintained by the County for grading. An affidavit completed

in 1998 by Don Kemp, superintendent for the Road and Bridge Department of

Wakulla County, states that Wakulla County has continuously maintained Kristin

Lane for a period of twenty years. Kristin Lane is designated with a green road sign,

as opposed to a blue road sign. According to the County’s website, the presence of

a green road sign indicates that the road at issue is a county-maintained road. The

road matrices of Wakulla County reflect that Kristin Lane is listed as an unpaved

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county road for the years 1997, 2001, and 2008.

      Both the Matherses and the County moved for summary judgment. After a

hearing on the merits, the trial court granted summary judgment in favor of the

County on all three counts. While acknowledging that there was a genuine issue of

material fact as to whether Kristin Lane had been regularly maintained or repaired

by the County for seven years as required by section 95.361(2), the trial court

reasoned that 1) section 95.361(2) cannot be invoked by private parties and 2) a

dedication did not occur under section 95.361(2) because the County did not accept

ownership of Kristin Lane.

                                        II.

      There are two distinct forms of dedication in Florida with regard to roads:

common-law dedication and statutory-presumed dedication. Common-law

dedication of a road requires “clear and unequivocal proof” of two elements: 1) an

offer to dedicate property to the use of the public and 2) acceptance by the

public. Bonifay v. Dickson, 

, 1093-94 (Fla. 1st DCA 1984). An offer

to dedicate may be implied from the acts of the landowner. 

Likewise,

acceptance may be implied from acts of the public, including “use by the public or

maintenance and improvement by the proper authorities of part of the land

dedicated.” 

do not rely on this form of dedication.

      There are two types of statutory-presumed dedication. The first type is set

                                         5
forth in section 95.361(1) and involves roads constructed by a county, municipality,

or the Department of Transportation. Under this provision, a private road becomes a

public road when it “has been maintained or repaired continuously and

uninterruptedly for 4 years by the county, municipality, or the Department of

Transportation.” § 95.361(1), Fla. Stat. This provision dates to the 1940s. See Sun

Plaza W. Dev. Corp. v. City of Holmes Beach, 

, 544 n.2 (Fla. 2d DCA

1985) (“The law has been in essentially the same form for more than forty years

though under different numbers. Therefore, references to section 95.361 in this

opinion should be read to include its predecessor statutes.”).

      The second type of presumed dedication is set forth in section 95.361(2) and

applies to roads not constructed by a government entity. Enacted in 2003, this

provision employs nearly the same language used in section 95.361(1), the only

differences being that the road must have been “regularly maintained or repaired”

rather than “maintained or repaired continuously and uninterruptedly” and such

maintenance must occur for seven years rather than four years. Because the

Matherses rely on this particular provision, its text is set forth in full below:

       (2) In those instances where a road has been constructed by a
      nongovernmental entity, or where the road was not constructed by the
      entity currently maintaining or repairing it, or where it cannot be
      determined who constructed the road, and when such road has been
      regularly maintained or repaired for the immediate past 7 years by a
      county, a municipality, or the Department of Transportation, whether
      jointly or severally, such road shall be deemed to be dedicated to the
      public to the extent of the width that actually has been maintained or
                                            6
      repaired for the prescribed period, whether or not the road has been
      formally established as a public highway. This subsection shall not
      apply to an electric utility, as defined in s. 366.02(2). The dedication
      shall vest all rights, title, easement, and appurtenances in and to the road
      in:
       (a) The county, if it is a county road;
       ....
      whether or not there is a record of conveyance, dedication, or
      appropriation to the public use.

§ 95.361(2), Fla. Stat. Because it was enacted so much later than section 95.361(1),

no case law construes section 95.361(2). However, because the statutory language

of each provision is virtually the same, we look to case law on section 95.361(1) for

guidance. In those cases applying common-law dedication and statutory-presumed

dedication under section 95.361(1), the concepts are discussed separately and

analysis of each is not mixed. Importantly, there are no cases applying section

95.361(1) so that the common law elements of offer and acceptance are made

requirements of statutory-presumed dedication. Instead, to the extent statutory-

presumed dedication is applied, courts focus on the level of maintenance and repair

without reference to offer or acceptance. See e.g., Chackal v. Staples, 

, 953-56 (Fla. 4th DCA 2008); Pasco v. City of Oldsmar, 

, 769-

70 (Fla. 2d DCA 2007); Hancock v. Tipton, 

, 372 (Fla. 2d DCA

1999); Lee v. Calhoun Cty., 

, 43 (Fla. 1st DCA 1988); Osceola Cty. v.

Castelli, 

, 418 (Fla. 5th DCA 1983); Hodges v. City of Winter Park,

, 1259 (Fla. 5th DCA 1983); Balbier v. City of Deerfield Beach, 408

                                           

, 765 (Fla. 4th DCA 1982); Campanella v. Shuford, 

,

1258 (Fla. 1st DCA 1976).

      The County argues that section 95.361 provides for acceptance by the filing

of a map with the clerk. The County points to section 95.361(3), which states as

follows:

        (3) The filing of a map in the office of the clerk of the circuit court of
      the county where the road is located showing the lands and reciting on
      it that the road has vested in the state, a county, or a municipality in
      accordance with subsection (1) or subsection (2) or by any other means
      of acquisition, duly certified by:
        (a) The secretary of the Department of Transportation, or the
      secretary’s designee, if the road is a road in the State Highway System
      or State Park Road System;
        (b) The chair and clerk of the board of county commissioners of the
      county, if the road is a county road; or
        (c) The mayor and clerk of the municipality, if the road is a municipal
      road or street,

      shall be prima facie evidence of ownership of the land by the state,
      county, or municipality, as the case may be.

      The County misunderstands this particular provision. Filing a map is not

necessary to accomplish dedication under the statute. See Sun Plaza W. Dev. 

(noting that a government entity may obtain title under section

95.361 without the filing of a map). Instead, the filing of the map, as the statute

states, creates “prima facie evidence of ownership of the land.” § 95.361(3), Fla.

Stat. Again, there is nothing in section 95.361 requiring that the government entity

accept ownership.

                                           8
      Next, the County argues that acceptance must be a requirement of statutory-

presumed dedication because a government entity cannot acquire property without

intending to do so. The County points out that section 95.361 resides within a chapter

entitled “Limitations on Action; Adverse Possession” and argues that it “would be

contrary to the concept of adverse possession that an entity could unintentionally

meet the requirements to adversely possess property and thereby be required to

assume unintended obligations.”

      The County is mistaken. Adverse possession may occur where the occupier

has a mistaken belief of ownership. There is no requirement that the occupier intend

to acquire land belonging to another. See Gay Bros. Constr. Co. v. Fla. Power &

Light Co., 

, 320 (Fla. 5th DCA 1983) (citing Seaboard Air Line R.

Co. v. Cal. Chemical Co., 

, 761 (Fla. 4th DCA 1968) (“[W]e reject

appellant’s contention that the occupier must have the subjective intent to

appropriate property of another in order for his possession to be adverse.”)).

      Similarly, there is no requirement that a government entity intend to acquire

property under section 95.361. See In re Jackson, 

, 746 (Bankr. N.D.

Fla. 1994) (“The debtor seeks to prove that the County does not own fee title to the

land beneath the roadway. He asserts that since the County neither owns the land nor

seeks to assert any claim of title to the land, fee title belongs to him. Regardless of

the County's intentions, however, the land may have been dedicated to the County

                                          9
by common law or statutory dedication.”) (emphasis added). To the extent the

County is concerned with inadvertently assuming heavy financial burdens, it should

bear in mind that roads may be abandoned pursuant to section 336.10, Florida

Statutes.

      In concluding that Kristin Lane was not publicly owned under section

95.361(2) because the County had not accepted ownership, the trial court either

inadvertently conflated the concepts of common-law dedication and statutory-

presumed dedication, or uncritically assumed that because acceptance is a

requirement of common-law dedication, it must also be a requirement of statutory-

presumed dedication. However, as discussed above, the plain language of the statute

compels a different conclusion. Once dedication occurs, “[t]he dedication shall vest

all rights, title, easement, and appurtenances in” one of three government entities,

here, the County. § 95.361(2), Fla. Stat. In other words, ownership of the road

automatically passes to the government entity at the moment it provides regular

maintenance and repair for the prescribed period of time, regardless of any

acceptance on the part of the government entity.

      Finally, the County argues that summary judgment was warranted because the

trial court correctly concluded that section 95.361 cannot be invoked by a private

party. However, we see no reason that section 95.361 should be limited to use by

government entities. Furthermore, there are a variety of cases in which private

                                        10
parties have been permitted to claim that a roadway became public property by

operation of section 95.361. See e.g., In re 

(permitting

private objector to invoke section 95.361 in order to destroy contiguity of land for

purposes of homestead exemption); Darley v. Marquee Enters., Inc., 

,

717-18 (Fla. 4th DCA 1990) (holding that trial court erred in refusing to instruct jury

on plaintiff’s theory that city owned road on which auto accident occurred by

operation of section 95.361); Premer v. State, Dep’t of Transp., 

,

1220 (Fla. 3d DCA 1977) (stating that personal injury plaintiff’s theory that

Department of Transportation owned road pursuant to predecessor statute of section

95.361 was question of law).

                                               III.

      In conclusion, acceptance is not an element of statutory-presumed dedication

under section 95.361, and section 95.361 may be invoked by private parties. Because

the trial court correctly acknowledged that there was a genuine issue of fact on the

issue of whether regular maintenance or repair occurred for the prescribed period,

this case must be reversed for further proceedings. See Alpha Data Corp. v. HX5,

L.L.C., 

, 910 (Fla. 1st DCA 2013) (“We reverse the summary

judgment in all other respects and remand for further proceedings because there

remain genuine issues of material fact.”).

      The trial court’s judgment is reversed and remanded as to Counts 1 and 3 for

                                          11
further proceedings consistent with this opinion. We affirm in all other respects.

ROBERTS, C.J., WINOKUR, J., and CLARK, JR., BRANTLEY S., ASSOCIATE
JUDGE, CONCUR.




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