Can a Florida water control district claim roads it maintained under the statutory presumption of dedication?

Plain-English summary

The Loxahatchee Groves Water Control District, an independent special district, has built and maintained about 29 miles of public-access dirt roads along its drainage canals since shortly after it was created in 1917. After residents approved resurfacing some roads and adding traffic-calming devices, the district discovered that parts of the roads it had long maintained fell outside the road areas dedicated to it on a 1925 plat. The board chairman asked whether section 95.361, Florida Statutes, could be used to establish a presumption that those roads had been dedicated to the district.

Attorney General Bill McCollum said no. Section 95.361(1) provides that when a road built by a county, a municipality, or the Department of Transportation has been maintained continuously for four years, it is deemed dedicated to the public, vesting title in the county, the municipality, or the state. The statute names only those three types of government. Florida courts construe it strictly, because it can divest a property owner of land in a relatively short time, and any failure to meet its elements defeats a statutory dedication.

Reading the statute's plain terms, the opinion applied the principle that listing certain things implies the exclusion of others (expressio unius est exclusio alterius). Because section 95.361 mentions only counties, municipalities, and the DOT, it does not extend the presumption of dedication to a special district. The AG was careful to add a limit on the holding: concluding the district could not use section 95.361 was not a comment on whether the district could establish a common-law dedication or use the road-dedication procedures in its own special act.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does Florida's section 95.361 do?
A: It presumes a road dedicated to the public when a county, municipality, or the Department of Transportation has maintained it continuously for four years, vesting title in that government even without a recorded conveyance.

Q: Can a special district use section 95.361 to claim roads it has maintained?
A: No. The statute names only counties, municipalities, and the DOT, and the AG concluded its presumption does not extend to a special district like a water control district.

Q: Why did the AG read the statute so narrowly?
A: Florida courts construe section 95.361 strictly because it can take an owner's property in a short time, and the opinion applied the rule that naming specific entities implies excluding others not listed.

Q: Does the district have any other way to establish dedication of these roads?
A: The opinion did not rule that out. It expressly declined to comment on whether the district could rely on a common-law dedication or on the road-dedication procedures in its own special act.

Background and statutory framework

The Loxahatchee Groves Water Control District operates under its enabling act, Chapter 2004-410, Laws of Florida, and Chapter 298, Florida Statutes. Section 95.361 and its predecessor (former section 337.31) create a statutory presumption of public dedication after four years of continuous maintenance, but only for roads maintained by a county, a municipality, or the Department of Transportation. Courts read the statute strictly (Balbier v. City of Deerfield Beach), and a failure to satisfy its elements defeats the dedication.

The opinion turned on plain-language construction and the canon expressio unius est exclusio alterius (Thayer v. State), concluding the enumerated list of governments excludes special districts. It then cabined its own holding, citing Hancock v. Tipton's discussion of prescriptive easement, common-law dedication, and statutorily presumptive dedication, and pointing to the district's special-act dedication procedures, to make clear it was deciding only the section 95.361 question.

Citations and references

Statutes and session laws:

• § 95.361, Fla. Stat. (statutory presumption of road dedication), including § 95.361(1) (four-year maintenance by county, municipality, or DOT)
• Chapter 298, Fla. Stat. (water control districts)
• Chapter 2004-410, Laws of Florida (district enabling act)

Cases:

• Balbier v. City of Deerfield Beach, 408 So. 2d 764 (Fla. 4th DCA 1982), strict construction of the statute
• Hancock v. Tipton, 732 So. 2d 369 (Fla. 2d DCA 1999), prescriptive easement and common-law vs. statutory dedication
• Thayer v. State, 335 So. 2d 815 (Fla. 1976), expressio unius canon

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/special-districts-dedication-of-roads
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1697

Original opinion text

Mr. David DeMarois

Chairman, Board of Supervisors

Loxahatchee Groves Water Control District

Post Office Box 407

Loxahatchee, Florida 33470-0407

RE: SPECIAL DISTRICTS – ROADS – DEDICATION – special district not authorized to use statutory procedure for dedication of roads. s. 95.361, Fla. Stat.

Dear Mr. DeMarois:

As Chairman of the Board of Supervisors of the Loxahatchee Groves Water Control District and on behalf of a majority of the members of the board, you have asked for my opinion on substantially the following question:

Whether section 95.361, Florida Statutes, may be utilized to establish a presumption of dedication of certain roads to the Loxahatchee Groves Water Control District.

In sum:

Section 95.361, Florida Statutes, may not be utilized by a special district, such as the Loxahatchee Groves Water Control District, to establish a presumption of dedication in roads located within the district.

According to your letter, the Loxahatchee Groves Water Control District (the district) is an independent special district operating pursuant to its enabling legislation, Chapter 2004-410, Laws of Florida, and applicable provisions of Chapter 298, Florida Statutes. The district has constructed and maintained approximately 29 miles of public access dirt roads associated with its drainage canals for the benefit of its residents since shortly after its creation in 1917. You advise that a majority of the affected residents of the district have given approval by referendum to resurface certain of these roadways and install traffic calming devices.

In preparation for making these roadway improvements, the district has discovered that certain of the constructed and maintained roadways are not located entirely within the legal descriptions of the roads dedicated to the district as shown on a 1925 plat. You have asked whether section 95.361, Florida Statutes, may be utilized to establish a presumption of dedication for these roads, allowing the road improvements to proceed without delay.

Section 95.361(1), Florida Statutes, provides:

"(1) When a road, constructed by a county, a municipality, or the Department of Transportation, has been maintained or repaired continuously and uninterruptedly for 4 years by the county, municipality, or the Department of Transportation, jointly or severally, the road shall be deemed to be dedicated to the public to the extent in width that has been actually maintained for the prescribed period, whether or not the road has been formally established as a public highway. The dedication shall vest all right, title, easement, and appurtenances in and to the road in:

(a) The county, if it is a county road;

(b) The municipality, if it is a municipal street or road; or

(c) The state, if it is a road in the State Highway System or State Park Road System,

whether or not there is a record of a conveyance, dedication, or appropriation to the public use."

Florida courts have addressed this statute and its predecessor, section 337.31, Florida Statutes (1973), to indicate that the statute should be strictly construed. The rationale for a strict construction is based on the fact that the statute has the effect of depriving an owner of his property in a relatively short period of time compared to acquisition of title by prescription and adverse possession.[1] Failure to meet all of the statutory elements defeats a dedication under the statute.[2]

The terms of this statute provide authority only to counties, municipalities and the Department of Transportation. Nothing in section 95.361, Florida Statutes, extends the presumption of dedication or contemplates that dedication will vest title in other governmental entities or political subdivisions. The general rule is that where language is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction.[3] Further, it is a well-recognized principle of statutory construction that the mention of one thing implies the exclusion of another – expressio unius est exclusio alterius. Thus, when a statute enumerates the things upon which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all things not expressly mentioned.[4] Section 95.361(1), Florida Statutes, is specifically directed to municipalities, counties, and the Department of Transportation and nothing in the statute expands the presumption of dedication to other governmental entities generally.

In light of the clear and unambiguous language of the statute, it is my opinion that a special district, such as the Loxahatchee Groves Water Control District, is not authorized to utilize the provisions of section 95.361, Florida Statutes, to establish a presumption of dedication in roads located within the district.

However, my conclusion that the district does not come within the terms of section 95.361, Florida Statutes, for purposes of statutorily presumptive dedication should not be read as a comment on either the powers of the district to effect a common law dedication or to utilize the provisions of the special act creating the district which provides procedures for dedication of roads within the district.[5]

Sincerely,

Bill McCollum

Attorney General

BM/tgh

[1] See Balbier v. City of Deerfield Beach, 408 So. 2d 764 (Fla. 4th DCA 1982). See also St. Joe Paper Co. v. St. Johns County, 383 So. 2d 915 (Fla. 1st DCA 1980); Pasco v. City of Oldsmar, 953 So. 2d 766 (Fla. 2d DCA 2007).

[2] Hancock v. Tipton, 732 So. 2d 369, 372 (Fla. 2d DCA 1999).

[3] Fine v. Moran, 77 So. 533, 536 (Fla. 1917).

[4] See Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976); Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952); Ideal Farms Drainage District v. Certain Lands, 19 So. 2d 234 (Fla. 1944).

[5] And see Hancock v. Tipton, 732 So. 2d 369 (Fla. 2d DCA 1999), discussing prescriptive easement, common law dedication, and statutorily presumptive dedication. See also s. 4, Ch. 2004-410, Laws of Fla., setting forth the powers of the district and authorizing the board of supervisors of the district to accept roads within the boundaries of the district for dedication by following the procedures described therein.