City of Daytona Beach v. Tona-Rama, Inc.

Supreme Court of Florida · 1972 · Property

294 So. 2d 73 (Fla. 1974)

Updated July 23, 2026

Propertyeasementsprescriptioncustomary beach usebeach rightsprescriptive easementadverse usepermissive use

Facts

The defendant owned oceanfront property in Daytona Beach, including a dry sand tract above the normal high water mark from which its pier extended over the Atlantic Ocean. For decades, the defendant operated the pier as a recreation and tourist attraction, while the unobstructed dry sand portion of the parcel was used by the public for sunbathing and related beach recreation. The city issued a permit for an observation tower connected to the pier, and the defendant built the tower at a cost of over $125,000 on a small circular portion of the dry sand area. The plaintiff sued to stop the project, alleging the public had acquired an exclusive prescriptive right to use the land.

Issue

Whether the public acquired a prescriptive easement over the defendant's dry sand beach parcel so as to prevent the defendant from erecting the observation tower, and, if not, whether the public nevertheless had a protected right to continue recreational use of the dry sand area.

Rule

A prescriptive right arises only from actual, continuous, uninterrupted use that is adverse under a claim of right, with the owner's knowledge or with use so open and notorious that knowledge is imputed; the use must be inconsistent with the owner's use and enjoyment and not permissive. If the public's recreational use of the dry sand beach area has been ancient, reasonable, without interruption, and free from dispute, that use is protected as a matter of custom, but this customary right creates no interest in the land itself and allows the owner to make any use consistent with and not interfering with the public's customary use.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

For 35 years, visitors in Galveston, Texas, have spread towels and played volleyball on a privately owned strip of dry sand above the usual high-water line next to a boardwalk owned by Seabright Leisure, LLC. Seabright encouraged the activity because beachgoers regularly bought food and rented chairs from its nearby pavilion.

If local residents sue to stop Seabright from placing a small ticket booth on part of the dry sand, which argument is strongest under the governing doctrine?

Explanation. Prescription requires actual, continuous, uninterrupted use that is adverse under a claim of right, with the owner's knowledge or imputed knowledge. Use is presumed permissive and subordinate to title unless adversity is proved. Where public use is welcomed and benefits the owner, it is not inconsistent with the owner's rights and does not ripen into a prescriptive easement.