75 Fla. 125 | Fla. | 1918
This case comes here by writ of error to the judgment of the- Circuit Court, for Orange County discharging the defendant in error, upon habeas corpus, from the custody of the plaintiff in error as chief of police of the City of Orlando.
The petition for the writ of habeas corpus discloses the following facts: The city of Orlando is incorporated under a special act of the legislature and has the general powers of cities and towns incorporated under the general law; that located within the city is Lake Concord which covers an area of about forty acres, and ranges in depth from a “few feet to ten or fifteen feet;” that the lake is not meandered and is owned by private parties who own the lots bordering thereon; that the petitioner owns a lot bordering on the lake, which lot extends several hundred feet into the lake; that in April, 1917, the city of Orlando by ordinance prohibited bathing in the lake, and at the same time granted to a private corporation, viz, Orlando Water &. Light Company, a right to draw water from the lake in order to supply the city with which it had a contract with water for municipal purposes; that neither the city nor the water company had taken the waters of the lake under any legal proceeding to subject them to the public use, nor had any compensation been allowed to the property owners for the waters so taken ; that in July, 1917, the petitioner went in bathing in the
The petitioner contends that the ordinance of the city under which he was arrested and convicted is void because it is an attempt to take private property for public use without just compensation, and without due process of law, and thus violates both the Federal and State Constitutions.
The plaintiff in error denies that proposition, and asserts that before that question can. be considered the court will have to decide whether habeas corpus under the circumstances of this case is the proper way to present it.
In other words the plaintiff in error contends that the “reasons assigned for the invalidity of the ordinance is that in the particular case the petitioner owned the lot bordering on and extending into the lake, and that he did not leave his own and his neighbor’s property upon which he had been invited, a fact which might or might not be a defense in the particular case, but even if a good defense, it does not render the ordinance invalid in all cases and under all circumstances.” That the defense having been interposed and the judgment having been rendered against petitioner, he should have taken his case to the Circuit Court by writ of error, and not by habeas corpus, for
If the petitioner did confine his defense in the municipal court to the fact that while bathing in the lake he did not leave his own premises, that circumstance should not
The -question is clearly and definitely presented, whether the city of Orlando has the power to prohibit by ordinance any person from bathing in Lake Concord, which is a non-navigable lake within the city’s limits, and owned by the persons whose lots border thereon, and who enjoy the rights of riparian' owners and in which the city has no property interest whatever. Such ordinance being-designed solely to' prevent the possible pollution of the waters of the lake which are being used by a private corporation to supply the city with watér for municipal purposes?
Counsel for plaintiff in error contends, and we think correctly, that habeas corpus will not lie to test the guilt or innocence of one who is charged with an offense under a valid act or ordinance, but it does not follow that the court will not in such a proceeding inquire into the facts to ascertain whether under the circumstances the act or
In the case of State ex rel. Worley v. Lewis, 55 Fla. 570, 46 South. Rep. 630, the question of fact as to whether the city of Jasper was a city of five thousand inhabitants was mater] a! to the question of the validity of the ordinance under which the petitioner Worley was arrested and detained in custody. It was not apparent from the face of the ordinance that it was void and the court does not take judicial notice of the population of a city. See also Hardee v. Brown, supra. The attack made upon the ordinance in this case questions its existence as a valid law of the city, the contention being that its validity depends upon certain extrinsic facts, not whether, as in the case of Randall v. Tillis, 43 Fla. 43, 29 South. Rep. 540, it was specifically applicable to the transaction or conduct of the accused. In the case at bar, the petitioner questions the power of the city. In the case of Randall v. Tillis, supra, the petitioner questioned the applicability of the act to the particular conduct with which he'was charged.
We think that the writ of habeas corpus was properly issued in this cáse, and that in the proceedings the peti
Counsel for plaintiff in error contends that the ordinance was valid, while petitioner contends that the ordinance deprives him of his property without just compensation and without due process of law and the power to enact the ordinance was not within any expressly delegated or implied power granted by the legislature.
It may be conceded that bathing in the lake, or subjecting it to any use which the riparian proprietors might under the law subject it to, would tend to pollute the water and render it unfit for use by the city. In such case under the general welfare clause of the general act for the incorporation of cities and towns the power would exist to enact an ordinance to prevent such uses of the lake, provided such ordinance was not inconsistent with the constitution and laws of the United States and of this State. Section 1013 General Statutes, 1906, Florida Compiled Laws, 1914. To be valid an ordinance must be reasonable and not in conflict with any controlling provision or principle of law (Waller v. Osban, 60 Fla. 268, 52 South. Rep. 970) ; should be within the powers expressly or impliedly conferred (Hardee v. Brown, supra; Malone v. City of Quincy, 66 Fla. 52, 62 South. Rep. 922; Ferguson v. McDonald, 66 Fla. 494, 63 South. Rep. 915), and if any doubt exists as to the extent of a power attempted to be exercised by a municipality out of the usual range, or which may affect the common law right of a citizen, it is to be resolved against the municipality. Anderson v. Shackleford, 74 Fla. 36, 76 South. Rep. 343.
In the case at bar it appears from the record that.the water company is using the water of the lake for municipal purposes without objection on the part of the riparian
What rights have the public in the private lands of another that forbids that other’s reasonable enjoyment of them? The city could acquire no rights to the lake except by the exercise of the power of eminent domain or purchase. That it has not done, but seeks by the ordin
It may be admitted that the -city might prescribe rules and regulations -governing the enjoyment-of the pleasure of -bathing in one’s, own lake, prescribing the ent or fashion of the bathing, suit to be used to the . end that the modesty of the ultra refined may not be shocked, and remain within its powers, but the ordinance under consideration prohibits bathing in the lake- altogether, and thus prevents the owners from exercising dominion and control over their -own.
In the case of People v. Hulbert, 131 Mich. 156, 91 N. W. Rep. 211, 100 Am. St. Rep. 588, cited in the brief of counsel for defendant in error, the City of Battle Creek owned land bordering upon the lake from whence it took, water for the city’s supply. It was a riparian owner. The court held that a city could not for the purpose of obtaining a water supply prevent the ordinary and reasonable use of the- waters of an inland lake or stream by an upper riparian proprietor without the exercise of the right of eminent domain or without purchase. The question of the jurisdiction of the city over the territory covered by the lake seemed not to be involved. The case of George v. Village of Chester, 202 N. Y. 398, 95 N. E. Rep. 767, holds .that a riparian owner may not be prevented by police power of the State from the enjoyment of the reasonable and incidental rights such as bathing, boating, fishing and swimming in a lake which is- his by reason of his riparian proprietorship even though the
We have found no authority which we consider maintains to the contrary. In the case of Broward v. Mabry, 58 Fla. 398, 50 South. Rep. 826, this court held that those who own lands extending to ordinary high water mark of navigable waters are riparian holders and their rights as such.are property rights that may be regulated by law, but may not be taken without just compensation and due process of law. In the case at bar the lake is owned by the persons whose lots border upon it. As such owners there is no question that they have the right to use their property as they may so long as such use does not injure another’s property. Nor is there any doubt as a matter of law that non-navi-gable bodies of water may be the subject of private ownership. See Gould on Waters, Sec. 83; Lembeck v. Nye, 47 Ohio St. 336, 24 N. E. Rep. 686, 8 L. R. A. 578. It is a matter of general information that the State of Florida acquired under the Swamp and Overflowed Land Grant Act of September 28th, 1850, many millions of acres of land much of which consisted of lakes and ponds and which have passed to private ownership.
The ordinance in question if enforced against the petitioner would deprive him of a reasonable use and enjoyment of his own property which is equivalent to depriving him of his property and that without due process of law or just compensation.