32 Fla. 539 | Fla. | 1893
The appellees as owners of the steam tug “E. E. Simpson,” in an action in case, in the Circuit Court of Escambia county, recovered judgment against the appellant for the sum of $244.88, and from this judgment the defendant below appeals.
The only error assigned is the ruling of the court below upon the defendant’s demurrer to the plaintiffs’ ■ declaration, whereby the sufficiency of the declaration to warrant a recovery in law was questioned. The 'declaration is as follows: “Wm. K. Hyer and Albert Hyer, as partners under the firm name of Hyer Brothers, E. C. Brent, Isaac Rogers and John J. Bowes, as owners of the steam tug named E. E. Simpson,1 the plaintiffs, by their attorney, . John C. Avery, sue the Pensacola and Atlantic Railroad Company, a corporation, the defendant. For that, towit: on the 6th day of .March, 1888, to-wit, in the county and State aforesaid ■(Escambia county, Florida), the said plaintiffs then and there being the owners of a certain steam tug named E. E. Simpson, which they used in the business of towing vessels and timber in the waters of Pensacola bay and the .tributaries thereof, and the said defendant being then .and there engaged * * under the authority of law in the business of transporting freight rand passengers for hire over the line of railroad extending from the county aforesaid across the county of ■Santa Rosa, from east to west, the said defendant was then and there engaged in the said business and accomplishing the said transportation between the said counties by means of a certain bridge across the waters of Escambia bay, a navigable stream, and an arm of the .■■said bay of Pensacola; the said bridge being laid upon piles driven into the soil forming the basin of the said
The declaration admitting, as it does, that the defendant has the lawful authority to occupy the waters of this bay with its road, the company can not be held in fault in having it there, unless it be that in the erection or use of its authorized structures it has, in some unlawful manner destroyed, or unnecessarily abridged or obstructed its usefulness to the public as a navigable highway. Our next inquiry, then, from the declaration is, does it charge upon the defendant any default in the manner in which it has exercised its authority to cross said bay; or in. the structures or use of the structures erected by it to effect such crossing; or in the structural design, position, dimensions or use of the drawbridge designed to subserve the double purpose of affording to the railway the means pf crossing'the stream, and, at the same timeserving to retain for such stream its usefulness ns a highway? We find no complaint against the defendant in any of these respects; therefore we conclude that the defendant has not exercised and used its. authority to occupy the •stream in any unauthorized manner, but that what it
The judgment appealed from is reversed, with directions to sustain the defendant’s demurrer to the declaration.