52 Fla. 216 | Fla. | 1906
(after stating the facts) : The damages alleged in the first count of the declaration are:
(1) For the change in the grade of the approach to the viaduct adjacent to plaintiff’s lot so as to make the passage way over the viaduct eighteen inches above the entrance to plaintiff’s building, which entrance was constructed so as to be even with the grade of the viaduct before it was raised; (2) for giving up by the defendant of the original street to said railroad companies for other than street purposes in consequence of the original construction of the viaduct; (3) for being excluded from the use and privileges of the street, and ordinary ingress thereto and egress therefrom, and (4) for impairing the
As. incidents to the ownership of a lot bordering on a public street there are in addition to the right of passage over the street in common with the public, the private property right of egress and ingress from and to the lot by way of the street and the private property right of light and air which the street affords. The owner of such a lot takes and holds it subject to the right of the State or any duly authorized governmental' agency acting for it, to improve the street for public use by altering the grade of the street, by the erection of a. viaduct thereon or otherwise, for street purposes; and in the absence of legislation or a valid contract the owner has no right of action against a city authorized by law to grade and improve the street for injury to the lot or property thereon, or for the impairment or destruction of the incidental rights of ingress and egress and of light and air which the street affords, because of changes made by the city in the gracle of such street by building or rebuilding a viaduct thereon for the improvement of such street even though such changes in the grade prove inconvenient or expensive to the lot owner in the use of his property, where there is no diversion of the street from its proper street purposes, and where the injury to the lot or property thereon or the impairment or destruction of the incidental rights is a mere consequence from the lawful use or improvement of the street as a highway, and where there is no physical invasion of or trespass upon the lot or property, and no malice, negligence or unskillfulness in the use or improvement of the street for street purposes to the injury of the lot owner. See Dorman v. State, 13 Fla. 538; Selden v. City of Jacksonville, 28 Fla. 558, 10 South. Rep. 457.
There is no allegation in the declaration that there was malice, negligence or unskillfulness in the use or improvement of the street by the changing of the grade of the viaduct, or that there has been a physical invasion of or trespass upon plaintiff’s abutting property; and, consequently, in view of the above statement of the law, it is clear the plaintiff cannot recover for any element of damage claimed in the first count of the declaration, unless there is a sufficient allegation that the plaintiff has suffered injury to his lot or property thereon or to the right of ingress and egress, and of light and air afforded by the street, because of the diversion of the street by the city to other than street purposes. It is not claimed that the city had no. lawful authority to build the viaduct changing the grade; of the street or to change the grade of the viaduct.
The declaration alleges that while the. plaintiff owued the lot and the defendant was possessed and had control of the adjacent street, the defendant directed, authorized and permitted the building and construction of a viaduct across the street running parallel with the lot; that the plaintiff obtained from the engineer of the defendant a grade by which to construct a building on the lot and by the grade of the viaduct so obtained he constructed and built on said lot a 3-story brick structure in accordance and in harmony with the grade of the viaduct as constructed; that thereafter the defendant directed, authorized and permitted certain railroad companies to tear down, demolish and remove the viaduct so built and to
The plaintiff cannot recover damages upon the allegation in the first count of the declaration that “in consequence of the building of the said viaduct as aforesaid, the said defendant has given up to the use of the said railroads the original street as aforesaid for other than street purposes, and plaintiff has been excluded from the use and privileges thereof, and ordinary ingress thereto and egress therefrom and the air and light thereto has been impaired and plaintiff deprived thereof,” even if there is a specific claim, for damages under this allegation, for the reason that he alleges that he constructed his building with reference to the use of the original viaduct and not the original street as a means of ingress and
The second count of the declaration “alleges each and every the allegations of the first count, and further declares that acting under the permission ánd authority of the defendant as aforesaid, the said companies as aforesaid were negligently, unnecessarily and unreasonably slow in the construction of the said viaduct and the demolishment of the old, and were a year longer in the construction of the new and the demolishment of the old viaduct than was reasonably necessary, and unnecessarily and negligently delayed the completion of said new viaduct for at least one year, whereby the plaintiff was prevented from leasing his said building on said lot to divers persons who wanted to lease the same for a period of five years, but after negotiations for and considering the said lease declined and refused to take the same, solely because of the aforesaid delay in the building and completion of said new viaduct, in consequence whereof plaintiff lost money,” &c. In the first count it is alleged that
Sufficient facts are not alleged in either count of the declaration to constitute a cause of action against the defendant, therefore the third ground of the demurrer addressed to both counts being good, the demurrer was properly sustained. The plaintiff declining to amend, final judgment was correctly entered for the' defendant, and such judgment is here affirmed.