Tideway Corp. v. State Road Department , 118 So. 2d 595 ( 1960 )

PEARSON, Judge.

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.

The 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.