74 Fla. 336 | Fla. | 1917
By this suit the appellants, complainants below, challenge the validity of an ordinance of the City of St. Petersburg, one of the appellees, whereby certain streets of said .city were vacated and closed as public streets, and the land upon which the streets so vacated and closed was located, was granted to the appellee Atlantic Coast Line Railroad Company for depot purposes, and the right of said railroad company to occupy said location with its freight depot pursuant to the provisions of said ordinance.
The material averments of the bill of complaint are briefly stated in substance, as follows: that the locus in quo was duly dedicated as public streets of said city' of St. Petersburg, that the dedication was accepted by the city and said streets were used by the complainants and the public generally as public streets; that the said city by its city council on August 4th, 1904,’ passed and adopted ordinance numbered seventy-three (73) whereby the following portions of Eighth Street and First Avenue were vocated and closed as public streets, and the area so vacated was granted to the Atlantic Coast’ Line Railroad
It is further averred that at the time of the passage of said ordinance the said railroad company owned in fee simple Lots 75 and 76 of Ward and Baum’s Addition to St. Petersburg abutting on the east and west sides of said Eighth Street at the point so vacated and closed, and that said railroad company in the early, part of the year 1905 erected its freight depot across said Eighth Street between said Lots 75 and 76, completely closing said street; that it used said depot continuously until the year 1913, when it moved said depot which was a wooden structure, west on to the property owned by it, with the declared intention of erecting upon the same
It is then averred that the complainants Bozeman Brothers own Lots 7, 8 and 9 of Block 42, according to the map of said city, and have had located thereon since the year 1910 a retail grocery store, a retail electric supply business and warehouse, and an ice cream factory; that at the time they purchased said lots they knew that a wooden freight depot was located in said Eighth Street and that it closed said street; that as a result of said street’s being closed the said Bozeman Brothers suffer injuries and damages unlike those suffered by the general public in that, in order to reach a large percentage of their customers, the post office and other public buildings, they must “surround said depot either by going out to Ninth Street and around to Seventh Street, by way 'of Second Avenue South, as shown on said map of said city hereto attached, or by .going to Ninth Street and thence to Central Avenue, as shown on said map, thereby forcing said Bozeman Brothers to go to a circuitous and inconvenient way, as well as a much longer way, in delivering their goods,” etc.; .that the bulk of the population and business center of said city is to the northeast of said place of business of said
Other averments are contained in said bill to the effect that said complainants Wish to improve their property and lay a sidewalk in front of it so that it may be of easier access, thereby increasing their business and enhancing the value of their property, but that it is useless to do so as long as said streets are closed as aforesaid.
The allegations of the bill as to the other complainantare to like effect; and present no question different in principle from that-presented-by the case of these complainants.
The prayer is that the ordinance be cancelled and declared to be null and void; that- the deed of conveyance, if any had been executed pursuant to the provisions of said ardinance, be-cancelled and declared to be null and void, and that the said railroad company be enjoined and restrained from erecting and maintaining a -freight depot upon-the portions of said streets described in said ordinance.
To the bill of complaint-the following demurrer was filed by -the defendant Atlantic -Coast Line Railroad Company:
“1. There is no equity in said bill.
“2. The City of St. Petersburg, under .its charter, had a right to pass ordinance No. 73, and the Railroad Company had the right to erect the building complained of under and by virtue of the said Ordinance No. 73.
“3. The bill of complaint shows on its face that the complainants in said cause acquired the lands, owned by them long subsequent to the passage of the Ordinance No. 73, and long subsequent to the time that Eighth Street had been entirely closed by . the freight depot of the defendant company.
“4. . The bill of complaint fails- to show on its face that the complainants, or either of them, will suffer any damage different from that suffered by the general public of St. Petersburg, by reason of the passage of Ordinance No. 73, or by reason of the erection of the building by the defendant.
“5. It is apparent upon the face of the bill that the complainants are not entitled to an injunction by reason of their gross laches. .
“6. It appears by the bill of complaint that the defendant was the owner of the lands on each side of that portion of Eighth Street which was closed by the City of St. Petersburg by Ordinance No. 73, on August 4th, 1904, and by the closing of said street between said lands, the legal title thereof vested in the defendant.
“7. It appears by the bill of complaint that the complainants have, an adequate and complete remedy at law.”
The only error assigned in this order of the Circuit Judge.
Two questions are presented by this appeal, which may be stated as follows: (1) Has the City of St. Petersburg the power and authority to adopt a valid ordinance of this kind, and if so, -(2) is it made to appear from the averments of their bill that the complainants are in position to raise this question and present it so that it may be pássed upon and determined in a suit of this kind.
We- will consider these questions in the inverse order, because if it is found that the complainants are not in position to question in a suit of this character, the exercise of this power by the City of St. Petersburg, it follows necessarily that the question of whether or not the city possesses such power is not before us.
The controlling principles of law in cases of this kind are well established. The difficulty is in applying these principles to the facts of the case presented to the court for adjudication,
This court has held that when the property rights of an individual are specially injured by an unlawful obstruction in a public street or highway and no adequate remedy -at law is afforded he may have the aid of a court of equity in removing such unlawful obstruction (Brown v. Florida Chautauqua Ass’n., 59 Fla. 447, 52 South. Rep. 802); but if such obstruction merely interferes with the right of passage common to all citizens and no individual rights. are specially or peculiarly injured the relief from such unlawful obstruction should
In the case of Robbins v. White, 52 Fla. 613, 42 South. Rep. 841, this court in a case similar to this laid down the rule as follows: “If the alley or street is a public highway which cannot be, or has not been, lawfully abolished, and the complainant is an abutting property owner, she may enjoin the obstruction of the alley or street if some damage to her property differing in kind from that of the public is threatened by the obstruction. The obstruction of a public street is a public nuisance, but it may also constitute a private nuisance. An individual cannot enjoin the obstruction of a public street unless some special damage to his property or injury to him differing not only in degree but in kind from the damage sustained by the community at large is threatened.” In the case of Jacksonville, T. & K. W. Ry. Co. v. Thompson, supra, this court said: “The allegation that the plaintiff’s property abuts upon the public road which, at some portion of the same, is obstructed, does not change the rule. If by proximity to the road he has occasion to use the same oftener than other citizens, he only suffers damage to a greater degree, but not of a different kind, to that sustained by all others who have occasion to travel the road;” and in the case of Garnett v. Jacksonville, St. A. & H. R. R. Co., supra, the court speaking through Mr. Justice Westcott, stated the rule as follows: “We will not stop to discuss the question, but will simply say that it is the settled law here and elsewhere that an individual cannot recover damages at law, or have relief in equity, against even
“The gist of the action, the gravamen of the complaint, is the special and particular injury. For the common injury there can be no redress, save by some authorized action ,in behalf of the people.”
How, applying these principles, can it be said that the allegations of the bill, which are well pleaded and admitted by the demurrer to be. true make out a case showing such special injury to. the complainants, different not only in degree but in kind, from that sustained by the public generally, as to, warrant the. interposition of a court of equity in a. suit brought in the name and on behalf of such complainants? The streets authorized by the city ordinance complained of to be closed are First Avenue South running east and west, and Eighth Street, running north and south, where the avenue and street intersect and cross, and one hundred feet of said Eighth Street north of said First Avenue South where said street extends north, between Lot. 75 on the east side of said street and Lot 76 on the west side of said street. It does not appear that First Avenue, South has been obstructed, and it is distinctly averred, as we have seen, that the depot in process of construction “will be entirely in Eighth Street, but not beyond the boundary of said Lots 75 and. 76 when completed,” and that said lots are. owned by the defendant railroad company.
The property of the complainants Bozeman Brothers, as it appears from the maps of said city attached as exhibits to the bill of complaint, is Lots 7, 8 and 9 of Block 42, facing and abutting First Avenue South lying-west of the point where said avenue and said Eighth Street cross and where said obstruction in said street
That the location of numerous other lots, with reference to. said, obstruction, is similar to the location pf. the lots of these complainants with reference to such obstruction is apparent, and it is clear we think that the damage sustained by the complainants because pf such pbstructicn, is net different in kind frem the damage* sustained by the community at large. It is true that ccmplainants are denied the use ef the street sc cbstructed, but their properties are accessible from other streets. It is likewise true that the public generally are denied the use of such street. If therefore there is a difference in the damage sustained, it is in degree. . In such a case, as we have seen, the remedy is through the proper public authorities.
In the case of Brown v. Florida Chautauqua Association, supra, it was held that the averments of the bill showed “special, peculiar, particular and substantial injury to the complainants,” because of the natural relationship of the hotel business in- which they were engaged, to the passenger depot; and the inconvenience and increased risk, in being forced, because of the unlawful obstruction there complained of, to use a moré dangerous and longer route which crossed the railroad track
Having reached this- conclusion, i-t follows that the power of the city to adopt the ordinance complained of cannot be tested in a suit at the instance of these complainants, and that no reversible- error was committed by the court below in sustaining the demurrer and dismissing the bill of complaint.
Order affirmed.