## Facts

- McMillan and Wright, Inc. owned oceanfront property in Daytona Beach for decades, including a pier extending into the Atlantic and an adjacent “dry sand” area landward of the mean high-water mark.
- The dry-sand tract was about 15,300 square feet and was typically uncovered by water except during unusually high tides or storms.
- The public historically used the adjacent beach for recreational activities commonly associated with beachgoing.
- McMillan and Wright obtained a city permit and built a small observation tower on the dry-sand tract; the tower could be accessed only from the pier and occupied about 225–230 square feet.
- Tona-Rama, Inc., which operated a nearby tourist facility, sued alleging the public had acquired enforceable rights to use the dry-sand area and that the tower interfered with those rights.

## Issues

1. Whether the public acquired a prescriptive easement over the privately owned dry-sand area landward of the mean high-water mark.
2. Whether longstanding customary public use of the dry-sand area creates a legally protected public right limiting an owner’s ability to erect structures inconsistent with that use.
3. Whether the observation tower, on the record presented, warranted injunctive relief requiring its removal.

## Decision

- The Florida Supreme Court quashed the district court’s affirmance and reversed the trial court’s summary judgment.
- The court held that the evidence did not establish a public prescriptive easement because the public’s use was not shown to be “adverse” to the owner.
- The court recognized that, in proper circumstances, customary public use of the dry-sand area may create enforceable public rights limiting private uses inconsistent with beach recreation.
- On the record presented, the court found an insufficient basis to order removal of the observation tower, given its limited footprint and lack of a demonstrated material interference with customary beach use.

## Legal Principles

- A prescriptive easement requires open, notorious, continuous use for the requisite period that is adverse; permissive or owner-benefiting use does not satisfy adversity.
- Customary public use of privately owned dry-sand beach areas may be legally protected where the use is longstanding, uninterrupted, and reasonable, and may restrict private conduct inconsistent with public recreational use.
- Recognition of customary rights does not eliminate private title; it subjects the owner’s use to a reasonableness limitation to avoid material interference with established public beach use.
- Mandatory injunctive relief (such as removal of a structure) requires a record showing that the challenged use unreasonably impairs protected public beach use.

## Conclusion

The Florida Supreme Court rejected a public prescriptive easement over the dry-sand beach due to lack of adverse use, but acknowledged that customary public recreational use can constrain private beachfront development; it nonetheless declined to require removal of the tower on the record before it.


City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974)