51 Fla. 502 | Fla. | 1906
This is an appeal from a decree of the Circuit Court for Walton county dissolving an injunction and dismissing the bill of complaint filed by the appellant against the appellees on May 10th, 1902.
The bill in substance alleges that the complainant is seized and possessed in fee simple of two certain described parcels of real estate south of the right of way and track of the Louisville and Nashville Railroad, in the town of DeFuniak Springs, Florida, which town claims to be a legaly incorporated town under the laws of Florida, and to have been such since July, 1901; that complainant’s title to said land is deraigned by grant from the United States to the State of Florida about the year 1856; by grant from the State of Florida to the Pensacola & Atlantic Railroad Company about the year 1881; by deed from the Pensacola & Atlantic Railroad Company to Thomas T. and Catherine P. Wright; by deed from Thomas T. and Catherine P Wright to the Lake DeFuniak Land Company; by deed to one of the above parcels to complainants, and by deed to the other parcel to the
An answer was filed in which respondents admit that certain buildings were standing on the described property and were destroyed by fire on February 16, 1902; that the ordinance referred to was passed; that respondent Mc-Caskill entered upon the land and removed therefrom all obstructions thereon so that the general public could safely pass thereover, the same being a public highway; but deny that the same was done without authority, and aver that he did so in compliance with his official duties as marshal of the respondent town, it being the duty of the respondents to extend and open the streets, lanes and avenues of the said town, and. to cause encroachments,
A replication was filed and testimony was taken before a master. At the hearing a decree was rendered dissolving the injunction and dismissing the bill of complaint. An appeal was taken from this decree.
The orders of the court refusing the relief asked and dismissing the bill are among the errors assigned.
The contention of the complainant is that the respondents have attempted, and are threatening, to unlawfully take and subject his real estate to the uses of a public street; and the insistence of the respondents representing the public is that the property was dedicated to public use by a company through whom the complainant deraigns his title, and that it is the duty of the respondents to enforce the rights of the public in the use of the land as a public street.
A court of equity has jurisdiction to enjoin a municipal corporation and its officers from opening up and using as a public street, without the owner’s consent, land belonging to an individual, which has not been condemned, dedicated or used as a street or highway. See Baya v. Town of Lake City, 44 Fla. 491, 33 South. Rep. 400.
The bill alleges that the complainant is seized and possessed of the land in controversy and that the respondents are endeavoring to unlawfully subject it to public use as a street. The denial in the sworn answer of the respondents that the complainant is seized and possessed of or had any interest in the locus in quo, being directly and
The averment as to dedication is that the Lake De-Funiak Land Company, through which company the complainant deraigns his title, in the year 1884, was seized and possessed of section 35, T. 3 N. R. 19 W., of which section the land in controversy is a part, and that said company, a corporation, during the year 1884, made or caused to be made a map or town plat of that part of said section 35 that contains the lands in question and other adjoining lands, and filed the same in the office of the Clerk of the Circuit Court for Walton county, Florida, upon which map or town plat were laid off blocks and lots and squares with spaces for roads, streets, alleys, avenues and other public highways for the use of the general public ; that said part of said section was laid off into blocks, lots, squares, streets, roads, alleys, avenues and parks, and certain parts thereof, such as said streets, roads, alleys, avenues and parks were dedicated to the public
The averment is that the property in controversy was platted upon the map as street, avenue and park property, and that it was dedicated to the public for public uses and was so accepted and used. There is no direct averment that the locus in quo was platted, dedicated, accepted, and used by the public as a highway or street.
The intention to dedicate should be considered in determining the existence and character of a dedication of land to public use. 9 Am. & Eng. Ency. Law (2nd ed.) 36, 57, 79 and authorities cited; 13 Cyc. 452.
Where the owner of land makes a town plat thereof, laying the same out into blocks and lots with intervening-streets clearly indicated upon the plat separating the blocks, and conveys lots with reference to such plat, he thereby evinces an intention to dedicate the streets to public use as such. Price v. Stratton, 45 Fla. 535, 33
The dedication in this- case is alleged to have been made by the making and filing of a map or town plat and by selling lots with reference thereto. If the land in question is located in a street as clearly indicated upon the map or town plat then there is evidence of an intention to dedicate the same for public use as a street.
The map or town plat referred to purports to be a map of Lake DeFuniak showing blocks, lots, streets, avenues and parks thereon with appropriate numbers on the lots and names on the streets, avenues and parks. The place was incorporated as DeFuniak Springs in 1901.Baldwin Avenue runs east and west through the town, parallel with and immediately north of the track of the Louisville and Nashville Railroad; a lake is a short distance south of the railroad track; 8th street runs north and south and intersects Baldwin Avenue, but as shown by the map does not extend beyond Baldwin Avenue to the south.
The town ordinance referred to in the bill of complaint provides that “there shall be established and maintained a public crossing for all purposes across the railroad, Baldwin Avenue and Wright Avenue at 8th street extending south to the south boundary of Wright Avenue.” The map or town plat does not show Wright Avenue to be between 8th street and the lake to the south; but there is testimony that Wright Avenue is now so' located that if 8th street is projected across the railroad track south as required by the ordinance it will include the land in controversy and will intersect Wright Avenue.
The map appears to have been filed of record in 1886, but it is shown to have been in existence in 1884, and that deeds made as early as May, 1884, referred to it in de
The decree is reversed at the cost of the appellees and the cause is remanded with directions to enter a decree in accordance with the prayer of the bill.