356 So. 2d 345 | Fla. Dist. Ct. App. | 1978
Lead Opinion
Appellants appeal from a judgment on the pleadings entered in favor of appellees in a declaratory judgment action. The issue here is whether the trial court erred in entering the judgment on the pleadings. It did not err and we affirm.
Appellants alleged in their complaint that the Behms (appellees) deeded a site in Char-Lar Estates to Dorsey (appellant) and prior to and subsequent to the transfer of the property to Dorsey orally represented to him that he as well as other nonwaterfront owners would be entitled to exclusive use of a pier and adjacent real property together with the boat basin and surrounding area. Attached to the complaint was a Grant of Easement which gave Dorsey the right to use the boat basin. Also attached to the complaint was a Quitclaim Deed To Pier which quitclaimed the Behms’ interest in a pier in Crescent Lake to the Edmistons, Raulersons and Weidenhof (appellees). Appellants sought a declaration of their right to use the pier and adjacent real property together with the boat basin and surrounding area because appellees had denied them these rights.
Appellees answered admitting the right of appellants to use the boat basin but denying their right to use the pier. They then moved for judgment on the pleadings which the trial court granted without giving its reasons. Although not pled, without objection, appellees argued orally and by written memorandum that the alleged oral promise to create an easement was barred by the statute of frauds.
Not only do appellees admit that appellants are entitled to use of the boat basin but the Grant of Easement clearly and unambiguously gives them this right, thus, there is no dispute on this issue.
Not only do the allegations of the complaint fail to describe the pier in question but an oral promise to create an easement violates the statute of frauds. Section 725.-01, Florida Statutes (1975), and Florida Real Property Practice I, page 584. There is no dispute on this issue.
The judgment is affirmed.
Dissenting Opinion
dissenting.
I respectfully dissent. In my view this is not a proper case for a judgment on the pleadings. See Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla.1st DCA 1975).