90 So. 2d 112 | Fla. | 1956
Lead Opinion
The intervening defendant, City of Panama City, passed an ordinance relinquishing and abandoning its easement for street purposes of Nelson Street and an unnamed street, whereupon appellant brought suit in equity against the fee owner seeking a decree enjoining the obstruction of the street by the defendant-appellee on the grounds of invalidity of the ordinance. The defendant answered and upon motion for summary judgment a final decree was rendered and plaintiff appealed.
The principal ground for relief by injunction was that if Nelson Street was vacated that appellant would have no means of ingress and egress except over Church Street, which had not been “dedicated for public use”; that if the unnamed street was closed the appellant would be required to travel an additional half-mile en-route to and from work; and that the closing of the streets was for a private use, and not a public purpose, the purpose being to enable the'defendant American Oil Company to use the land to expand its oil plant over the vacated streets.
The cities of this State are authorized by section-167.09, F.S.1955, F.S.A. to discontinue any street and the plaintiff has not shown -that the exercise of the power by the city in this instance constitutes a wrongful invasion of any personal or property right of the plaintiff.
The allegations of the complaint tend to show that the public had an easement by prescription over the unnamed street vacated and there is no proof tending to-overcome the prima facie, showing that the public hás an easement by prescription over Church Street. By use of Church Street it appears that appellant will have adequate means of ingress and egress.
No error of the Chancellor having been made to appear, the decree appealed from is
Affirmed.
Concurrence Opinion
(concurring specially).
In addition to the reasons assigned in the foregoing opinion, I think the case is clearly controlled by the holding o'f- this Court in Henry L. Doherty & Co. v. Joachim, 146 Fla. 50, 200 So. 238.
