74 Fla. 103 | Fla. | 1917
The appellee in 1912 exhibited her bill against the City of Marianna, appellant, and certain of its officers and prayed for an injunction restraining the city and certain of its officials from attempting to open a street through appellee’s lands and from interfering with her said lands in anywise.
The chancellor granted a temporary injunction against the city and certain of its officers and its agents and employees restraining them from “trespassing upon the property of the complainant in said bill described and from attempting to open a street as a continuation of Green Street north of North Green Street through the property enclosed and claimed by complainant and from in anywise interfering with complainant’s fences or property until the further order of this court.” On final hearing in June, 1916, the chancellor found that the equities were with the complainant below and decreed
The bill of complaint alleges in substance that Mrs. Daniel owns certain lands in the City of Marianna on the north side of North Green Street and to the westward of Jefferson Street in the Peyton addition to the “plan of the town of Marianna.” That north of North Green Street no street has been opened to the westward of her lands “which property is sometimes known as Lots four and six of said Payton’s Addition.” Green Street is a street which runs north and south through a certain part of the city and intersects North Green Street near complainant’s land which is bounded on the south by the latter street. It is alleged that Green Street terminates at the point where it intersects North Green Street and that north of that point Green Street has never been opened, extended, dedicated or used by the city as a street. The complainant improved her property by building two cottages upon it fronting upon North Green Street and rebuilding a fence along the southern line of her land which extends according to her contention to a point west of what would be the eastern side of Green Street if that street extended north of North Green Street. It is alleged that the land now enclosed has been used and claimed, occupied and enclosed by the complainant and her late husband and his predecessors in title and at no time has the part in dispute been in open street. The bill alleges that the city through its officers is threatening to tear the fence away and appropriate so much of the property as is necessary to the city’s use as a public street without making any compensation to the complainant therefor. The answer does not clearly aver that , any part of the lands claimed by complainant was
The answer undertakes to defend the city’s act- in removing the complainant’s fence upon the ground that a portion of the "land enclosed by the fence had been‘dedicated by the former owner of the soil “to' public use as a street. There is no averment however that the former
As the averment of dedication in the answer is new matter offered in justification of the defendant’s attempt to subject the complainant's property to a public use, the burden rests upon the City of Marianna to prove such dedication. See McGourin v. Town of DeFuniak Springs, 51 Fla. 502, 41 South. Rep. 541.
The question presented by the record is not what constitutes a dedication of land for public use. .as a street, but the question of fact whether a dedication of the particular parcel of land had been made.
We have examined the evidence carefully and are unable to say that the conclusion reached by the chancellor was erroneous. Mock v. Thompson, 58 Fla. 477, 50 South. Rep. 673; Waterman v. Higgins, 28 Fla. 660, 10 South. Rep. 97; Williams v. Bailey, 69 Fla. 225, 67 South. Rep. 877.
The decree is therefore affirmed.