45 Fla. 535 | Fla. | 1903
STATEMENT.
On March 10th, 1866, F. F. L’Engle, appellee’s lessor, filed and recorded in the office of the clerk of the Circuit-Court of -Duval county a plat of a tract of land then he-
On April 10th, 1875, L’Engle conveyed by warranty deed to Cain Williams the northeast quarter of lot six in block eight, according to the plat above mentioned, lying immediately south of, and contiguous to, the premises leased to Frank Clark, and shown by reference to the plat to extend eastwardly to the same street therein laid off. By a subsequent conveyance, dated July 27th, 1877, this parcel of land was conveyed by Williams to Henry Smith, and on February 18th, 1878, Smith conveyed it to Anthony Dekle; Adeline Clark, then Smith’s wife, uniting
About April 1st, 1884, L’Engle leased to one Claiborne “an irregular tract bounded north by Bay street, east by Canal, south by railroadj west by six foot lane,” and the latter went into possession of and occupied the premises so leased. These premises lay to the east of those formerly conveyed by L’Engie to Adeline Clark and Cain Williams, and the “six foot lane” described as the west boundary thereof was a lane extending six feet east of, and parallel to, the fence erected by Frank Clark, when he went into possession in 1866 of the premises leased him, and subsequently conveyed to Adeline Clark, his widow. On March 24th, 1885, the appellee, Stratton, purchased Clairborne’s rights under this lease and also the improvements made by him on the leased premises. Previously, on March 14th, 1885, L’Engle leased to Stratton “that certain tract or parcel of land in the town of LaVilla, Duval county, Florida, on the south side of Bay street as the same is extended through the town, lying between the said Bay street on the north, the railroad on the south, a lane six feet wide on the west and the canal opened some years since by the party of the first part on the east, having a front of eighty-four feet exclusive of said lane on Bay street and a front on the railroad exclusive of said lane, one hundred and ten feet or thereabouts, the measurements being made by the party of the second part and reported to the party of the first part as correct.” This
The appellee filed his bill in the court below to enjoin appellants from moving their fence to the true boundary of their premises, four and a half feet east of its location.
The appellants answered the bill, denying that they had obstructed or attempted to obstruct a public lane, and asserting that they had the right to set their fence on the true boundary line of their premises, being the western boundary of the street as delineated on the plat filed and recorded by F. F. L’Engle in 1866. The answer further averred the dedication of said street to the public by L’Engle in 1866; that he wrongfully and in violation of appellants’ rights made a lease to appellee covering part of said street, and that appellee with full knowledge thereof erected his ice factory in the street, and obstructed the street and had continued so to do.
At the same time appellants filed a cross-bill against appellee, seeking to enjoin him from continuing to obstruct the alleged street.
The cross-bill was demurred to, on «the ground that it wrns wanting in equity, that the subject-matter thereof was not germane to the subject-matter of the original bill, and that F. F. L’Engle was a necessary party thereto. The demurrer was sustained, and the cross-bill dismissed “without prejudice to the right of complainants in cross-bill to file an original bill.”
Testimony was taken and a decree rendered in favor of appellee making perpetual a temporary injunction theretofore issued, in accordance with the prayer of the bill. Error is alleged in sustaining the demurrer to-, and dismissing the cross-bill, an din the rendering of a decree in favor of appellee. The other facts are stated in the opinion.
(after statmg the facts)
The first error assigned is that the court erred in sustaining the demurrer to the cross-bill, and dismissing it.
The cross-bill showed that F. F. L’Engle in 1866, being the owner of a tract of land in LaVilla, “divided the said tract of land into lots, blocks and streets, and on or about March 10th, 1866, had placed upon the public records (of) the said county of Duval a map or plat thereof, showing the same divided into lots, blocks and streets the same being recorded in Book ‘M’ page 724 of said recordsthfit L'Engle afterwards made conveyances with refex1ence to said plat, of pox-tions of the property so platted, including one to the predecessor iix title of complainants in the cross-bill; that such conveyances, including that to complainants’ ancestor, were made prior to the acquisition of any rights by the appellee in and to the property claimed by him under the lease subsequently executed by L’Engle; that the appellee, under said lease, had entered upon a street shown upon said plat, abutting eastwardly on appellants’ premises, and erected thereon a building extending fifty-eight feet westward into the street, thereby obstructing and almost wholly closing up the street on the east of appellants’ premises. It is clear, therefore, that the cross-bill was not wanting in equity as asserted by the first ground of the demurrer thereto. Where the owner "of a tract 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 cou-v veys lots with reference to such plat, he thereby evinces an intention to dedicate the streets to public use as such,
The second and third grounds of demurrer present the question” whether the subject-matter of the cross-bill was sufficiently germane to that of the original bill, to require its retention as a cross-bill. A cross-bill may set up additional facts, not alleged in the original bill, but relating to the same subject-matter, and pray for affirmative relief in respect thereto. Ballard v. Kennedy, 34 Fla. 483, 16 South. Rep. 327; Griffin v. Fries, 23 Fla. 173, 2 South. Rep. 266. The original bill was filed to restrain appellants from moving their fence out to the true boundary line of their premises, so as to preserve to appellee a mode of ingress to and egress from his premises. ' The cross-bill sought to restrain appellee from obstructing a street claimed to exist, which abutted eastwardly on the premises of appellants, and which, if suffered tp remain open, would have furnished a suitable way, sixty feet in width, for the use of all owners whose property abutted thereon as well as the public in general. Appellants had previously answered the original bill, denying that the lane therein mentioned was a public highway for whose maintenance the court could coerce them to anpronriafe a portion of their premises, at the instance of the appellee,- and averring, on the contrary, that a public way did exist, but
i e 1'U'f .pestion pm-'in t -e demurrer is that F. F. L’Engle was a necessary party to the cross-bill, and not being a party to the original bill, could not be made a party to the cross-hill. The contention that he was a necessary party seems to be well founded. lie was the lessor •of defendant in the cross-bill, and the defendant occupied what complainants therein claimed to he a public street'under and by virtue of a lease from him for a period •of seventy-nine years from July 1st, 1886. A decree enjo;n‘n". his lessee ñor.? †" e occupation of tie street during U e i-nv'71 V 0" † 0 Piter's Priii vo'.11 lave oprr?t(-d
The other assignment of error, that there was error in rendering a decree in appellee’s favor, remains to be considered. It follows from what has been said in discussing the demurrer to the cross-bill that if the allegations of defendants’ answer, to'the effect that complainant, himself, was continuously obstructing substantially the entire street to the east of defendants’ premises, are true, complaiant was entitled to no relief- in a court of equity without doing, equity on his part; and the truth of these allegations is fully established by the evidence. It was undisputed that F. F. L’Engle, appellee’s lessor, filed and recorded a plat in the office of the clerk of the Circuit Court of Duval county in 1866, delineating thereon a strip of land sixty feet in width, lying to the east of appellants’ premises, as a public street, and that he made subsequent conveyances with reference to that plat, which were placed on record, long prior to the making of the lease to appellee. The recordation of these conveyances, describing the premises embraced therein with reference to the plat, charged all persons deriving rights under L’Engle, subsequently to their recordation, with notice of the plat, even although the recordation of the plat itself may not have done so, as there is express reference both in the deed from L’Engle to Adeline Clark, under which appellants claim, and in the deed from L’Engle to Cain Williams, under which appellee claims the Deklelot, to the plat and the book and page of its recordation. The deeds from Cain Williams to Henry Smith and from Henry Smith to Anthony Dekle, which are also links in
This cause being reached in its regular order on the docket, was heretofore referred by the court to its commissioners for investigation who reported the same for reversal for the reasons stated in the foregoing opinion prepared by Commissioner James F. Glen. After due consideration oi the cause upon the abstracts of 'the record and briefs of counsel by Division A of the court, the said foregoing opinion is hereby adopted and ordered to be filed as the opinion of the court in said cause, and for the reasons stated therein it is hereby ordered and adjudged that the decree of the Circuit Court in said cause be, and